Decided on January 12,1960

Thakurdas Majhi Appellant
Chand Majhi Respondents


P.N.MOOKERJEE, J. - (1.) THIS Rule arises out of an application for setting aside, what in truth and substance, was an ex parte decree, passed against the applicant who is the contesting opposite party before us. The application was made under the usual provision of Order IX, Rule 13 of C. P. C. The applicant was defendant No. 3 in the suit for partition, in which the aforesaid ex parte decree was passed. The applicant's case was that no summons of the suit had been served upon him and that he came to know of the above ex parte decree within the relevant period, namely, thirty days of the date of presentation of the aforesaid application for timely presentation of the said application for purpose of limitation.
(2.) THE application was contested by the present petitioner who was the contesting defendant No. 1 in the original suit, but he had as much interest in the decree for partition as such defendant as the plaintiff herself and, accordingly, he was certainly entitled to oppose the above applicant's aforesaid application. The case of the present petitioner was that, in the circumstances, stated in his petition of objection, the applicant, who is the contesting opposite party before us, as stated hereinbefore, must be held to have had knowledge of the suit and knowledge of the decree also at all material times and, certainly, long before thirty days of the filing of the aforesaid application under Order IX, Rule 13 of the Code of Civil Procedure.
(3.) IN support of their respective cases, the parties examined themselves and also some witnesses.;

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